Tribunal File Number: 18-004780/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

J.F.

Applicant

and

RBC Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Gjergji Laloshi, Counsel

For the Respondent: Laura Mexchino, Counsel

HEARD: In Writing on January 21, 2019

OVERVIEW

1The applicant was injured in an automobile accident on November 10, 2015 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are:

1. Is the applicant entitled to medical benefits for treatment recommended by Health One Rehab Inc. for the following;

a. $3,508.26 for chiropractic services submitted in a treatment plan dated December 14, 2015?

b. $2,408.56 ($3,508.56, less $1,100.00 approved) for physiotherapy services submitted in a treatment plan dated April 16, 2016?

c. $2,087.40 for chiropractic services submitted in a treatment plan dated October 31, 2016?

d. $1,712.92 for chiropractic services submitted in a treatment plan dated November 7, 2016?

e. $1,472.30 for chiropractic services submitted in a treatment plan dated December 10, 2016?

2. Is the applicant entitled to a medical benefit in the amount of $3,341.77 for psychological services recommended by Dr. J. Frank, psychologist, in a treatment plan dated October 26, 2017?

3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3Issue 1(a) was withdrawn during the hearing.

4The applicant is not entitled to the balance of the treatment plan dated April 16, 2016 because the respondent’s refusal was valid pursuant to section 38(5) of the Schedule.

5The applicant is entitled to the physiotherapy treatment plans listed as 1(c), 1(d), & 1(e) because they are reasonable and necessary.

6The applicant in entitled to the psychological treatment plan listed as issue 2.

7Interest is payable on overdue payments

BACKGROUND

8The applicant was the driver of a moving vehicle which was struck perpendicularly on the driver’s side by a left-turning vehicle. The applicant was treated by paramedics at the scene of the accident and went home. The following morning the applicant went to the hospital and complained of right wrist pain and tingling and neck pain. The applicant attended at Health One Rehab Inc. and claimed to be diagnosed with a wrist contusion, neck and low back pain, frequent headaches, stress, anxiety, sleeplessness, and fear of driving. However, the Application for Accident Benefits provided for this hearing was unsigned and did not include the name of the health professional who diagnosed the injuries listed by the applicant.

9The applicant initiated a claim for accident benefits and was treated in accordance with the Minor Injury Guideline (the “MIG”). The applicant was removed from the MIG about seven months later because of psychological injuries.

10The respondent denied the applicant’s claim for medical benefits listed as issue 1 (b), entitlement to the balance of a physiotherapy treatment plan, while the applicant was entitled to treatment in the MIG. The remaining issues in dispute were denied following the applicant’s removal from the MIG.

ISSUE 1(b) – Entitlement to the balance of a physiotherapy treatment plan

11The applicant is not entitled to the balance of the physiotherapy treatment plan dated April 16, 2016 because the treatment plan proposed services beyond the MIG while the applicant was still entitled to receive goods and services under the MIG. As a result, I find the respondent’s refusal was valid pursuant to section 38(5) of the Schedule.

12The decision on this issue is analogous to the one outlined in S.L. and Aviva Insurance Company of Canada 17-004989/AABS. The applicant’s Application for Accident Benefits listed injuries which were predominantly minor injuries as defined in the Schedule and captured in the MIG. This is because, at the time of the application, the applicant had not provided any evidence of an injury which was not a minor injury or related sequelae. Listing psychological injuries diagnosed by an unknown health professional on an application for accident benefits is not evidence of an injury excluded from the MIG. Likewise, the Disability Certificate dated January 18, 2016 is not evidence of an injury outside the MIG because it refers to a list of injuries on separate page however; the referenced page is not included with the Disability Certificate or the balance of the applicant’s evidence.

13As previously mentioned, the applicant was removed from the MIG in June 2016 based on psychological injures. As a result, the applicant is no longer subject to the treatment funding limit of $3,500.00. Following this, the applicant sought funding for physiotherapy treatment plans dated October 31, November 7, and December 10, 2016, listed above as issues 1(c), 1(d), & 1(e).

ISSUES 1(c), 1(d), & 1(e) – Entitlement to the physical treatment plans

14I have grouped together the issues listed as 1(c), 1(d), & 1(e) and refer to them as the physical treatment plans for the sake of simplicity because of the closeness in timing as well as their similarity in content. I find the physical treatment plans reasonable and necessary. My analysis is as follows:

15The applicant claims entitlement to the physical treatment plans and submits they are reasonable and necessary because the treatment plans have valid goals of pain reduction and increased strength and range of motion. The applicant claims an improvement of on-going pain symptomology from treatment received at the time the plans were submitted. In addition, the applicant submits the respondent has denied the treatment plans by carelessly relying on the flawed advice of Dr. Abuzgaya and failing to consider the applicant’s overall medical record.

16The respondent disagrees and submits there is no medical evidence of any objective accident related impairment for which rehabilitation is needed. The respondent claims the physical treatment plans are for a potential wrist fracture, however, the wrist fracture was ruled out prior to the creation of the treatment plans. Lastly, the respondent submits the treatment plans were found to not be reasonable and necessary by its assessor, Dr. Abuzgaya, and claims Dr. Abuzgaya’s opinion should be preferred over the applicant’s experts because, according to the respondent, the applicant’s expert, Dr. Wong, diagnosed the applicant with chronic pain syndrome without evidence to support the diagnosis.

17While I agree the physical treatment plans erroneously refer to the applicant’s wrist injury as a fracture, I disagree with the respondent as to whether the plans are considered not reasonable and necessary because of this issue. Upon my review of the treatment plans, I see they also note the applicant’s back, shoulder, and elbow pain and not just the applicant’s wrist issues.

18I have reviewed the reports and have not discounted Dr. Wong’s report because Dr. Wong did not diagnose the applicant with chronic pain syndrome as the respondent suggests. The report notes the applicant suffers with insomnia and stress problems frequently see in patients that suffer with chronic pain syndrome however, chronic pain syndrome is absent from the medical diagnosis in the report. Dr. Wong noted the applicant has a chronic pain problem and, it appears from the balance of the report, Dr. Wong is concerned the chronic pain may develop chronic pain syndrome, not that the applicant has chronic pain syndrome.

19I find the applicant suffers from wrist, neck, and back pain and the physical treatment plans are reasonable and necessary because they share the goal of reducing the applicant’s pain.

20The applicant consistently complains of right wrist and neck and back pain throughout the medical record, particularly in the summer and fall of 2016, the time the treatment plans were submitted. For example, the applicant’s family physician, Dr. M. Gorbrial, noted accident-related neck pain and over-all body aches in entries dated August 8 and October 7, 2016 respectively. Similarly, the records at Healthone Rehab Centre note ongoing wrist pain through the entirety of 2016. The applicant’s ongoing pain was also referenced by Dr. J. Frank, psychologist, in a psychological assessment report dated September 10, 2016, where Dr. Frank noted the applicant reported wrist, shoulder and neck pain. The psychologist also noted the applicant’s back, neck and shoulder pain is aggravated by a lack of sleep, something the applicant was suffering from as a result of psychological injuries.

21The respondent’s evidence does not outweigh the applicant’s. The respondent denied the treatment plans primarily on the opinion of Dr. Abuzgaya. However, I find Dr. Abuzgaya’s opinion unpersuasive when determining entitlement to the physical treatment plans because Dr. Abuzgaya’s assessment of the applicant is focused on whether or not the applicant has suffered minor injuries as defined by the Schedule and not on whether or not the treatment plans are reasonable and necessary. Dr. Abuzgaya confirmed the applicant suffered a wrist injury as a result of the accident but did not opine on the applicant’s ongoing pain nor did the orthopaedic surgeon comment on whether or not further treatment could reduce the applicant’s ongoing pain.

ISSUE 2 – Entitlement to the psychological treatment plan

22The applicant claims entitlement to the disputed psychological treatment plan and submits the plan is reasonable and necessary because the applicant has not fully recovered from the psychological injuries sustained in the accident. The respondent disagrees and submits the applicant’s psychological injuries are not as a result of the subject accident but due to other factors such as stress at work. The respondent also submits the applicant did not produce the clinical notes and records (“CNRs”) of treating psychologist, Dr. Frank, and asks me to draw an adverse inference from the lack of production.

23The applicant was not ordered by the Tribunal to produce Dr. Frank’s CNRs. In addition, the respondent failed to submit any evidence that it specifically requested them or that the applicant offered to provide them. Considering this, I choose not to draw an adverse inference.

24I agree with the applicant and find the psychological treatment plan is reasonable and necessary. The evidence supporting this finding includes;

i. Dr. Gorbrial’s CNRs which confirm the applicant was exhibiting signs of anxiety during visits throughout 2016 as well as in February and November 2017; and

ii. Dr. Frank’s progress report dated October 26, 2017 which states the applicant had made improvements but continued to struggle with, amongst other things, accident-related pain, anxiety, and posttraumatic stress.

25The respondent’s evidence, namely Dr. R. Ratti’s psychological assessment report dated March 19, 2018, found the applicant met the criteria for the diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood but attributed these symptoms to the applicant’s employment and not the subject accident. I prefer Dr. Frank’s report over Dr. Ratti’s for two reasons. First, Dr. Frank had the opportunity to observe the applicant over the span of a year and, as a result, has a better understanding of the applicant’s psychological condition, its origins, and need for treatment. Second, the applicant’s scores in the Multidimensional Pain Inventory are indicative of someone with a chronic pain condition, which is likely accident-related, and the applicant’s vehicular anxiety, which is unambiguously related to accident, are sufficient evidence to warrant the therapy recommended in the proposed psychological treatment plan.

CONCLUSION

26The applicant is not entitled to the balance of the treatment plan dated April 16, 2016 because the respondent’s refusal was valid pursuant to section 38(5) of the Schedule.

27The applicant is entitled to the physiotherapy and psychological treatment plans listed as 1(c), 1(d), 1(e), & 2 because they are reasonable and necessary. The applicant is entitled interest pursuant to section 51.

Released: June 27, 2019

___________________

Brian Norris

Adjudicator